The Court offers a lesson in compromise

Miami Herald Editorial Board

Chief Justice John Roberts and his seven colleagues are avoiding voting on issues that might end in a 4-4 vote.
Chief Justice John Roberts and his seven colleagues are avoiding voting on issues that might end in a 4-4 vote. U.S. Supreme Court

The Supreme Court gave the rest of Washington a lesson this week on how to resolve a thorny issue by accommodation and compromise, two long-abandoned concepts that were once central to the notion of government.

Members of Congress, especially those who think compromise is a dirty word, should pay heed if they want to end the paralyzing gridlock that has brought the legislative arm of the federal government into disrepute in public opinion surveys.

The death of Justice Antonin Scalia earlier this year and the refusal of Congress to even consider a replacement during President Obama’s last year in office have left the court in a 4-4 deadlock, evenly divided on a variety of important issues. As a result, Chief Justice John Roberts and his colleagues are eager to explore ways to avoid deciding questions whenever possible.

That’s what they did on Monday in one of the most important cases to come before the court this session, Zubik v. Burwell.

The case involves the politically sensitive Affordable Care Act and one of the most polarizing aspects of the law — the provision that employers’ healthcare plans cover the cost of birth control. When the law was first proposed, religious groups complained that it would violate their moral principles to offer insurance coverage for contraception to female employees. So the Obama administration devised a half-way provision: By informing insurers of their objections, they could avoid fines, and the insurance companies or the government would pay for the coverage.

Still, the religious groups demurred. They said forcing them to provide the required notice would make them complicit in what they considered morally objectionable behavior. The government thought that was a stretch and refused to give them a pass that would result in denying contraception coverage for employees who wanted it.

Hence the lawsuit. Most of the appellate courts around the nation agreed with the government that the solution it offered was fair and equitable to all parties, but one court disagreed, forcing the Supreme Court to accept a hearing.

Given the deadlock on the court, however, the justices unanimously agreed in an unsigned opinion issued Monday to send the case back to the lower courts. Better not to decide than to issue a 4-4 ruling, they apparently believed. But even so, the court suggested a reasonable compromise:

Those who object to the government’s proposal on theological grounds can simply say they do not want contraception coverage in their plans, period.

That would trigger a response by insurers, who would contact the individual employees to offer the denied coverage. That absolves the religious institutions from having to notify anyone of their objections, while still allowing coverage for those who want it. The suggestion may well satisfy all parties and make further litigation unnecessary.

Thus, the court managed to agree on a viable solution without forcing the justices to take a position on the merits of the case that would result in a frustrating 4-4 verdict.

The court’s job is to resolve legal disputes by declaring what the law is, but sometimes it serves an equally important role by acting as a referee on important national issues without reaching a final disposition. If only Congress could be equally creative in finding compromises for pressing national issues like budget deficits and our crumbling infrastructure, Americans would be better off.